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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Monday, March 30, 2015

This inmate brought a First Amendment lawsuit alleging that prison authorities retaliated against him for filing grievances. The inmates also raised a due process claim. The district court dismissed the case on summary judgment. The Court of Appeals reinstates the lawsuit.

The case is Rosales v. Kikendall, a summary order decided on March 26. The district court said that plaintiff could not show a connection between his grievance dated July 28, 2006 and the allegedly false misbehavior report issued on October 24, 2006. That three-month gap killed off any causation. But, the Court of Appeals (Katzmann, Walker and Chin) says, it was not really a there-month gap. Plaintiff continued to complain during that time period. Citing Traglia v. Town of Manlius, 313 F.3d 713 (2d Cir. 2002), the Court says, "This much tighter time temporal connection supports and inference of a causal link between Rosales's grievances and the misbehavior report."

Apart from the circumstantial evidence, there was also direct evidence of retaliatory intent, which allows us to pitch aside the time line. The "close temporal connection" method of causation is only necessary when plaintiff does not have direct evidence. In this case, the prison people told plaintiff that they would "set him up" if he did not resign his position on the Inmate Grievance Resolution Committee. While defendants say they would have disciplined plaintiff even without his protected activity, since plaintiff hotly disputes committing any misconduct, defendant's Mount Healthy defense is for the jury to decide.

Plaintiff also has a due process claim, claiming there was no evidence to support the misconduct finding against him. The jury could reject defendants' claim that they assisted plaintiff to the best of their ability at the misconduct hearing.The Second Circuit does not explain this holding, but the law requires that prison officials assist inmates round up evidence when they are charged with misconduct. It's been a long time since I saw a holding where the inmate won a due process claim on the theory that prison officials failed to assist in good faith. Plaintiff identifies evidence that could have helped him at the hearing that the prison officials were not able to round up for him, including an eyewitness letter from a fellow inmate that said plaintiff had done nothing wrong.

Inmates rarely win their lawsuits. Who knows if plaintiff will win this case. But he did prevail at the Court of Appeals, which remands the case to the Western District of New York for a trial on the merits.

Emory Watkins appeals from the judgment of the United States District Court for the Eastern District of New York (Wexler, J.), sentencing him to a three-year term of imprisonment for conspiracy to commit robbery and a consecutive five-year term of imprisonment for a related firearms offense. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

[REDACTED.]

For the foregoing reasons, we hereby VACATE the sentence in Count Two and REMAND FOR RESENTENCING consistent with this summary order.

There you have it. The analysis is literally redacted. An unredacted version of the opinion was presumably sent to Watkins' lawyer.

Wednesday, March 25, 2015

This is a case for the modern age. Plaintiff was defamed in a union newsletter after he refused to endorse a union president in 2002. After plaintiff was blackballed from jobs for years, in 2012, the newsletters containing the defamatory statements were posted online, hosted by GoDaddy's web servers. Since GoDaddy did not create the newsletters, can plaintiff sue that entity for defamation?

The case is Smith v. Teamsters Union Local 456, decided on March 18. GoDaddy cannot be sued for the defamation under the Communication Decency Act of 1996, which says that providers or users of interactive computer services are not treated as the publisher or speaker of any information "provided by another information content provider."

The public has been using the Internet for about 20 years, but the Second Circuit has yet to hear a case like this. Summarizing the case law from elsewhere, the Court says, "In short, a plaintiff defamed on the internet can sue the original speaker, but typically 'cannot sue the messenger." Other courts have applied the CDA to a growing list of Internet service providers, including GoDaddy. The Court of Appeals (Jacobs, Lohier and Swain [D.J.]) "join[s] the consensus." The Court reasons:

The Riccis allege only that GoDaddy “refused to remove” from its web servers an allegedly defamatory newsletter that was authored by another. These allegations do not withstand the Communications Decency Act, which shields GoDaddy from publisher liability (with respect to web content provided by others) in its capacity as a provider of an interactive computer service.

Monday, March 23, 2015

In this case, Smith was convicted of murder after a jailhouse informant testified at trial that Smith made incriminating statements about the killing. The federal court granted Smith's motion for habeas corpus on the ground that Smith's lawyer was ineffective in failing to move to preclude the informant's testimony. The Court of Appeals reverses, the conviction stands, and Smith remains in jail.

The case is Fischer v. Smith, decided on March 17. At the criminal trial, the prosecutor said the informant had independently contacted the detective about Smith's incriminating statements. Post-trial, Smith's new lawyer learned that the informant had collaborated with law enforcement for four years prior to Smith's trial. Since Smith's trial counsel had not moved to suppress the informant's testimony under the Supreme Court's 50 year-old precedent, Massiah, Smith won his habeas petition.

That victory is now taken away by the Second Circuit (Lohier, Calabresi and Lynch). The leading case on ineffective assistance of counsel is the Supreme Court's ruling in Strickland. This is a problem for Smith, as ineffective assistance claims are hard to win. All the more difficult because habeas petitions are hard to win. Here is how the Court of Appeals summarizes the state of the law:

Where a State court decision adjudicates a petitioner’s claim on the merits, a district court may grant habeas relief only if the decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); ... “Establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.” On habeas review “[a] federal court may reverse a state court ruling only where it was so lacking in justification that there was ... [no] possibility for fairminded disagreement.”

So Smith has to overcome double deference here. Note that a state trial court can commit an unconstitutional mistake at trial but the inmate still loses the habeas petition if the mistake was not clearly unreasonable. True, the Court of Appeals says, "we would hope that most lawyers would spot the Massiah issue in this case. But, the Court reasons:

Ideally, Smith’s trial counsel would have made a motion raising the issue. However, Smith’s trial counsel could have reasonably determined that, based on Ferguson’s testimony outside the presence of the jury and the prosecutor’s representations, Ferguson was not acting as a government agent when he elicited incriminating statements from Smith. If so, moving to suppress these statements at the time could reasonably have been viewed as baseless. Even if we thought counsel’s choice was not reasonable, we cannot say that it was unreasonable for the State Court to take the contrary view.

Thursday, March 19, 2015

Any plaintiffs' lawyer will tell you that the New York whistleblower law is fool's gold. It protects whistleblowers from termination, but the law has so many loopholes you can drive a Mack truck through it. Few people win under the statute, but this guy did.

The case is Blashka v. New York Hotel Trades Council, an Appellate Division First Department ruling decided on March 12. Dr. Blashka sued under Labor Law section 741, which says you cannot fire someone in retaliation for speaking out in good faith about the "improper quality of patient care." The trial court threw out the case because the plaintiff's complaint did not cite the law or regulations that his employer had violated. Supreme Court added,

Despite the plaintiff's contention that he was "informed" that The
Health Center may have violated the Education Law or the Rules of the
Board of Regents, he fails to state that this was his own reasonable
belief, as required by Labor Law § 741(2)(a). Nor does he state who
informed him of this fact or when. Therefore, he has failed to raise a
material issue of fact in that regard and otherwise fails to raise any
factual issue warranting a trial. Although plaintiff maintains that he was terminated for
complaining about The Health Center's practices relating to the
quality of patient care, including its failure to terminate the dentist
who had a drinking problem, he admitted at his deposition that he
"thought" he was fired a result of Dr. Greenspan retaliating against
him, but that he "can't prove it." Nor could he state a precise reason
for his termination. It is well settled that such speculation is
insufficient to defeat a motion for summary judgment. Indeed, the credible evidence submitted on
the motion indicates that the plaintiff's own conduct posed a threat to
The Health Center's patients.

The Appellate Division reverses summary judgment, and the case goes to trial. It is no longer good law that the plaintiff must cite the laws or regulations in his complaint. In May 2014, the State Court of Appeals rejected that pleading requirement in Webb-Webber v. CAHS (a case that I argued). On the merits, the First Department says plaintiff raised a fact issue whether he was fired in retaliation for whistleblowing:

Plaintiff's reports, in May and June 2009, to his superiors of his
suspicions that this dentist, whom he supervised, was drinking while
practicing dentistry were sufficiently close in time to support an
inference of causation between his disclosures and his termination in
July 2009.

In
response to the Health Center's asserted defense that it terminated
plaintiff because of prior warnings and his mismanagement of his
supervisee's alleged drinking, plaintiff raised issues of fact as to pretext by pointing to
record evidence that he reported his supervisee's resumption of drinking
to his superior as early as April 2009, but the superior told plaintiff
only to monitor the dentist and keep a log. Accordingly, there
are issues of fact as to whether plaintiff was terminated based on his
disclosures that his supervisee was drinking alcohol while
practicing dentistry.

Monday, March 16, 2015

A white tennis instructor sued the City of New York for racial discrimination after it terminated his permit to teach tennis at East River Park. The Court of Appeals rejects the case.

The case is Howard v. City of New York, a summary order decided on March 4. Plaintiff's evidence of discriminatory intent was "a single racially motivated comment uttered by a non-decisionmaker and the fact that the decisionmaker is black and he is white." In particular, the non-decisionmaker told plaintiff, "we don't want your white ass here" when he was retrieving his ball basket from a park building. A prior permit holder was treated more favorably than plaintiff.

This does not cut it, the Court of Appeals (Raggi, Wesley and Lynch) says. The racial comment does not get us anywhere because the guy who said it was not a decisionmaker. The statement was also made more than 10 months before plaintiff's permit was terminated. The comparator evidence is also not enough to infer racial discrimination. In the end, the Second Circuit says, "Howard has done little more than cite to his alleged mistreatment and ask the court to conclude that it must have been related to his race. This is insufficient."

Plaintiff also sues under the First Amendment because he was denied the permit after he complained about racial discrimination. The claim fails because the complaints started in October 2008 and he continued complaining until his permit was terminated in August 2009. "Howard cannot raise a triable [issue] of causation given that his protected activity occurred for so long without any adverse action. ... Indeed, rather than take adverse actions against Howard for his race discrimination complaints, the Park initially took his allegations seriously and conducted an investigation, which found Howard's allegations baseless."

Friday, March 13, 2015

The Court of Appeals has granted a Habeas Corpus petition filed by a man who was found guilty in 1993 for killing his former girlfriend, ruling that his attorney did not effectively represent him at trial.

The case is Rivas v. Fischer, decided on March 11. When the victim died, the medical examiner said the time of death was between Saturday, March 28, 1987 and Sunday, March 29, 1987. But when the case went to trial in 1992, the examiner said the victim died on Friday night, March 27, 1987, when Rivas lacked an alibi. Rivas had a better alibi for the original Saturday-Sunday time-of-death theory. The jury convicted Rivas of murder, and into the slammer he went.

Post-conviction motion practice argued that the medical examiner changed his time-of-death theory to curry favor with the District Attorney in order to avoid prosecution for the examiner's criminal conduct. Rivas also argued that the examiner's testing to determine the time-of-death of unreliable and bogus. He also hired an expert, Dr. Cyril Wecht, who said the examiner had miscalculated the time-of-death and that the victim had in fact died on Saturday-Sunday, not Friday night, again, when Rivas had no alibi.

The Northern District of New York denied the Habeas petition, but the Court of Appeals (Cabranes, Sack and Pooler) reverse and grant the petition, freeing Rivas unless the DA decides to prosecute him again (after Rivas spent more than 2 decades in jail). Rivas wins the appeal because his lawyer did a bad job at trial. Emphasizing at trial that the medical examiner had originally said the victim died on Friday night, counsel relied on an alibi defense for a time period that did not cover Rivas's tracks for Saturday-Sunday, the operative time period at trial. Counsel also ignored newspaper articles and other information sources that suggested the examiner had changed his time-of-death estimate without the benefit of new evidence. Investigating this changed timeline would have greatly assisted Rivas at trial. And, in not hiring an expert like Wecht to counter the "disgraced" medical examiner's estimate about when the victim died, counsel did not give the jury a reason to believe the victim had died on Friday night, when Rivas had an alibi.

The Court of Appeals concludes that if the state does not take concrete and substantial steps to retry Rivas within 60 days, the district court has to grant the Habeas petition.

Wednesday, March 11, 2015

The Court of Appeals has sustained the dismissal of an age discrimination case for failure to state a claim under the Iqbal pleading standards. The decision sheds light on what the Court wants the complaints to look like.

The case is Bohnet v. Valley Stream Union Free School District, a summary order decided on February 27. The cocktail party version of this case would suggest the plaintiff was denied numerous teaching positions because of her age. The district court ruling says that from September 2006 through October 2011, plaintiff sought but was denied 18 different tenure-track positions. She alleges the district instead hired people younger than 40, some of whom did not have permanent teaching positions.

Under the Supreme Court's Iqbal decision (2009), plaintiffs have to allege plausible claims in order to survive a motion to dismiss and proceed to discovery. Alleging a possible claim is not enough. Iqbal ain't no cocktail party. I am sure the plaintiff's lawyer took Iqbal seriously, since counsel submitted a proposed amended complaint to get the case through the courthouse door. It was not enough.

The district court said plaintiff "alleges only that she applied for many positions in the District while she was over the age of forty and that the District did not hire her for those positions but hired younger individuals under the age of 40. These allegations lack the specificity required to be more than an unadorned, the defendant-unlawfully-harmed-me accusation." In particular, the district court said, plaintiff alleged no details about the people who were selected or their particular ages, so in theory the selectees could have been 38 years old, which would suggest no age discrimination at all. Nor did plaintiff allege that defendants knew plaintiff's age or the age difference between plaintiff and the other applicants when they made the hiring decisions. And, no one made any discriminatory comments to plaintiff or that other older applicants were denied appointments or that only younger folk are employed at the district.

The Court of Appeals (Parker, Hall and Livingston) affirms, reasoning that "absent greater specificity, Bohnet's factual allegations of age discrimination both in her original and proposed amended complaint are conclusory and stop short of the line between possibility and plausibility."

This decision tells us that when drafting a complaint, put in as much evidence as you can find to support your claims and to avoid a motion to dismiss. The complaint in this case said much about what happened to the plaintiff, in particular that she was denied 18 positions over a five year period and that younger people got the positions instead. These allegations may have been enough to proceed to discovery under the old pleading rules, but they are not enough under Iqbal.

Tuesday, March 10, 2015

Anyone who represents plaintiffs knows that the statute of limitations for a Notice of Claim is short and sweet. Ninety days come and go with the wind. The practice was to file such a notice in employment discrimination claims against cities under Gen. Municipal Law section 50. The State Court of Appeals says that is not necessary.

The case is Margerum v. City of Buffalo, decided on February 17. This case alleges that the civil service exams used by the City in selecting firefighters and police officers have a discriminatory impact on minority candidates. The Court vacates the grant of summary judgment to the plaintiffs. Along the way, it says a Notice of Claim was not necessary here.

Two of the four judicial departments in New York have already held that Notices of Claim are not required in a Human Rights Law claim against cities under GML section 50. That rule now applies state-wide. Under the General Municipal Law, these notices must be served within 90 days after a tort is committed. In particular, the statute says you file them against a city for personal injury, wrongful death or damage to property caused by the city. But human rights claims, including those alleging employment discrimination, are not torts claims under the statute. So discrimination plaintiffs don't have to file them under the General Municipal Law. (Notices of claim in Human Rights Law claims are still required against school districts, towns and counties).

Astute readers have pointed out that this ruling applies to cases brought against a city under GML section 50, which "requires service of a notice of claim within 90 days after the claim arises '[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation." GML section 50-i (1) precludes commencement of an action against a city "for personal injury, wrongful death or damage to real or personal property
alleged to have been sustained by reason of the negligence or wrongful act of such city," unless a notice of claim has been served in compliance with section 50-e.

Thursday, March 5, 2015

Here is another case where someone was released from prison after DNA evidence proved that he was innocent. The ex-inmate then sued New York City over this, and the jury awarded him $18 million for spending over 20 years in the slammer. The trial court took away the verdict. The Court of Appeals gives it back.

The case is Newton v. New York, decided on February 26, nearly 2.5 years after oral argument. Newton sued under the Due Process Clause because the City lost his DNA evidence sometime in the 1980s, preventing him from proving his innocence. In 2006, after the evidence was found, Newton was exonerated and became a free man.

Newton's verdict is reinstated because a DNA freedom law in 1994 gave him a liberty interest in demonstrating his innocence. A 2009 ruling from the Supreme Court, District Attorney's Office v. Osbourne, supports Newton's position, because in that case Alaska's post-conviction relief statute, which gave people the right to prove their innocence through DNA evidence, resembles the law in New York.

Newton also was entitled to procedures to prove his innocence. Those procedures were violated because "when State law confers a liberty interest in proving a prisoner's innocence with DNA evidence, there must be an adequate system in place for accessing that evidence that does not 'offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,' transgress any recognized principle of fundamental fairness in operation.'" The evidence management system in NYC "failed miserably in Newton's case," the Second Circuit (Lohier, Lynch Droney) says. The evidence was misplaced, not an isolated practice.

Newton presented evidence that thousands of sometimes decades‐old yellow invoices at the Bronx property clerk’s office – out of a total of not more than 3200 such invoices per year – were in old out‐to‐court folders that had improperly never been closed out; evidence listed as “out‐to‐court” for over twenty years was lost; the PCD had lost track of and was unable to retrieve evidence in an unreasonably large number of cases (involving evidence older than five years); several high‐level officials tasked with supervising the NYPD’s evidence management system were unfamiliar with the PCD’s procedures; and the PCD’s dysfunction had an unconstitutionally deleterious effect on case closings in a large number of cases, including, obviously, Newton’s. The problem in Newton’s case was with the retrieval of evidence that was sitting there all along. Despite the preservation of the evidence that proved crucial in exonerating Newton, the PCD was unable to locate it from 1994 to 2005 and inaccurately represented that it had been destroyed either in a fire or pursuant to a regular disposal procedure that may not even have existed. Had Newton accepted the City’s recklessly erroneous representations about the evidence at face value, he might have remained in prison far longer than he did.

Tuesday, March 3, 2015

Occupy Wall Street protesters who marched across the Brooklyn Bridge sued the police who arrested them for disorderly conduct. The protesters said the arrests were unwarranted because some officers actually invited them to cross the bridge. The Court of Appeals originally held that the plaintiffs could proceed with their case. The Court has now changed its mind and says the officers are entitled to qualified immunity.

The case is Doe v. Garcia, decided on February 24. The Occupy people had just about had it with the wealth disparity in America. So they launched a series of protests in NYC and elsewhere. In October 2011, thousands of them wanted to cross the bridge into Prospect Park in Brooklyn. As the marchers began to cross the bridge, an officer used a bullhorn to tell the protesters to get on the bridge's sidewalk. Plaintiffs alleged that the officers knew this directive was inaudible for most protesters. The plaintiffs also interpreted the officers' actions as inviting them to cross the bridge, especially since the officers at the roadway entrance did not tell them not to walk along the road and the officers instead turned away from the protesters and walked toward Brooklyn, seeming leading the protesters along. Halfway across the bridge, an officer again announced that the protesters were risking a disorderly conduct arrest. While plaintiffs say this was also inaudible, the police began arresting them, more than 700 of 'em.

This case applies qualified immunity, which allows public officials to escape litigation if the law at the time was not clearly-established or they acted reasonably under the circumstances, even if in hindsight they technically broke the law. The officers get immunity here because it was a confusing situation. The Court of Appeals (Lynch, Calabresi and Livingston) conclude:

It cannot be said that the officers here disregarded known facts clearly establishing a defense. In the confused and boisterous situation confronting the officers, the police were aware that the demonstrators were blocking the roadway in violation of [the disorderly conduct law]. They were also certainly aware that no official had expressly authorized the protesters to cross the Bridge via the roadway. To the contrary, the officers would have known that a police official had attempted to advise the protestors through a bullhorn that they were required to disperse. While reasonable officers might perhaps have recognized that much or most of the crowd would be unable to hear the warning due to the noise created by the chanting protesters, it was also apparent that the front rank of demonstrators who presumably were able to hear exhibited no signs of dispersing. The Complaint and videotapes are devoid of any evidence that any police officer made any gesture or spoke any word that unambiguously authorized the protesters to continue to block traffic, and indeed the Complaint does not allege that any of the plaintiffs observed any such gesture.

Plaintiffs argued that the officers knew the arrests were improper because they did not stop them from advancing onto the roadway and then turned and walked toward Brooklyn, implicitly allowing them to proceed. This argument carried the day back in August 2014, when plaintiffs won this appeal. Now that the Court of Appeals has changed its mind, this argument fails.

The essential flaw in plaintiffs’ logic, and in that of the prior panel opinion, is the extent to which it requires police officers to engage in an essentially speculative inquiry into the potential state of mind of (at least some of) the demonstrators. Neither the law of probable cause nor the law of qualified immunity requires such speculation. Whether or not a suspect ultimately turns out to have a defense, or even whether a reasonable officer might have some idea that such a defense could exist, is not the question. ...The most that is plausibly alleged by the Complaint and the supporting materials is that the police, having already permitted some minor traffic violations along the marchers’ route, and after first attempting to block the protesters from obstructing the vehicular roadway, retreated before the demonstrators in a way that some of the demonstrators may have interpreted as affirmatively permitting their advance. Whether or not such an interpretation was reasonable on their part, it cannot be said that the police’s behavior was anything more than – at best for plaintiffs – ambiguous, or that a reasonable officer would necessarily have understood that the demonstrators would reasonably interpret the retreat as permission to use the roadway.

Monday, March 2, 2015

The Court of Appeals has ruled that the First Amendment prohibits the City of New York from retaliating against a police officer who spoke out against a precinct-wide quota policy. This is a rare victory under the First Amendment for public employees who speak out on matters of public concern.

The case is Matthews v. City of New York, decided on February 26. Matthews alleged that his precinct in The Bronx had implemented a quota system mandating the number of arrests, summons and stop and frisks that police officers must conduct. After complaining about this to superior officers, plaintiff suffered retaliation.

Straightforward facts, but the law in this area is complicated under the Supreme Court's Garcetti precedent (2006), which says the First Amendment does not protect speech made in the course of the plaintiff's official job duties. Under Second Circuit authority, Garcetti cases are dismissed if the plaintiff's speech was part-and-parcel of his ability to effectively perform his job. In other words, to have a case, the plaintiff has to speak as a citizen, not as a public employee. As most speech retaliation cases involve job-related speech, this legal standard kills off most First Amendment retaliation cases, making Matthews just the second published Second Circuit opinion in favor of a Garcetti plaintiff. The last one was in 2011.

Summary judgment is reversed in Matthews because the jury may find that he did not speak pursuant to his job duties. He was not employed to speak out on the quota policy. Nor was this speech "part and parcel of his regular job." Rather, "Matthews's speech addressed a precinct-wide policy. Such policy-oriented speech was neither part of his job description nor part of the practical reality of his everyday work." None of the duties in Matthews's job description involve "provid[ing] feedback on precinct policy or any other policy-related duty." He also did not set policy and was not expected to speak on (and was not consulted about) policy matters. The Court of Appeals (Walker, Hall and Murtha [D.J.]) concludes,

We hold that when a public employee whose duties do not involve formulating, implementing, or providing feedback on a policy that implicates a matter of public concern engages in speech concerning that policy, and does so in a manner in which ordinary citizens would be expected to engage, he or she speaks as a citizen, not as a public employee.

Matthews also wins the appeal because his speech had a civilian analogue, that is, it was made through "channels available to citizens generally." In speaking out to his commanders, "Matthews chose a path that was available to ordinary citizens who are regularly provided the opportunity to raise issues with the Precinct commanders." While the public does not get to communicate with commanders as frequently as Matthews can, that does not mean he did not speak through a civilian analogue. "If courts were to confine their focus to the degree of access, then internal public employee speech on matters of public concern not made as part of regular job duties would be unlikely to receive First Amendment protection because, presumably, employees always have better access to senior supervisors within their place of employment."

What does this decision mean for public employee speech cases? Does it allow more plaintiffs to survive summary judgment and proceed to trial? My guess is that it does not. An argument can be made that the Supreme Court's recent decision, Lane v. Franks (2014) loosened the standards governing Garcetti claims, making it easier for plaintiffs to win their cases. But the Matthews Court cites Lane in passing, and the pre-Lane standard in the Second Circuit -- that speech is not protected if it is part-and-parcel of the plaintiff's ability to perform his duties -- is alive and well and expressly relied upon in this ruling. That is a broad net through which First Amendment cases have been snagged. Consider the narrow holding here: Matthews spoke out on overall policy. The Court of Appeals emphasizes that he "was not reporting suspected violations of law that might have required him to exercise his authority to to arrest a fellow police officer or turn in an officer for breach of protocol," duties set forth in his job description. Bear in mind, also, that the two published cases in favor of Garcetti plaintiffs, Matthews and Jackler v. Byrne (a case I argued), involved police officers speaking out against indefensible abuses. Matthews spoke up against quotas; no one likes quotas. Jackler refused to alter a police report that implicated a Sergeant's police brutality.